First Senate Bill of the New Congress is Unconstitutional

The First Amendment ensures our ability to express opinions and engage in public boycotts

January 9, 2019

Last week, Senators Marco Rubio, Mitch McConnell, James Risch, and Cory Gardner introduced the first Senate bill (S.1) of the new Congress, titled the “Strengthening America’s Security in the Middle East Act of 2019.” On Tuesday, the Senate voted against the passage of S.1, which would have, among other things, appropriated funds for Israel’s own security and defense programs and passed into law the “Combating BDS Act of 2019.” The following day, Senate Majority Leader Mitch McConnell reintroduced the bill for a vote on the Senate floor, which will take place later today.

Were it to ultimately fail, the “Combating BDS Act of 2019” would still be just one of many recent pieces of anti-BDS legislation which have sought passage. Last month, we mobilized against one such bill, the Israel Anti-Boycott Act (IABA), which was first introduced in March of 2017 with the consultation of the American Israel Public Affairs Committee (AIPAC), and which was opportunistically included in a congressional spending bill at the end of this past year. The IABA would have criminalized participation in any foreign boycott against a country “friendly to the United States.” The “Combating BDS Act” would accomplish the same function by permitting the U.S. government, as well as state and local governments, to take punitive measures against any entity found to have engaged in BDS activities.

Many Americans, including American Muslims, have opinions on the Israel-Palestine conflict, and the First Amendment ensures their ability to express those views and to engage in public boycotts. The ACLU argued convincingly that the IABA infringed on this foundational American liberty, and two federal courts have already judged similar anti-BDS legislation as unconstitutional. Nevertheless, the IABA enjoyed bipartisan support in both the House and Senate, and might very well have passed in the last Congress were it not for a groundswell of criticism from civil society organizations and media outlets.

The introduction of S.1 was also particularly egregious in light of its being the first Senate bill of the new Congress, a distinction typically reserved for high priority legislation. By introducing it in the midst of a government shutdown which the President has threatened could last “months or even years,” Congress essentially prioritized funding a foreign government over reopening our own. This is especially odious in light of the personal stories of economic hardship faced by those impacted by the government shutdown.

While Congress issued an important vote in support of free speech on Tuesday, the failure of the “Combating BDS Act of 2019” is no indication that similar infringements won’t be introduced down the road. Just last year, the 20,000 inhabitants of Dickinson, a small city in Texas, were forced to sign over their right to boycott Israel in order to receive aid in the wake of Hurricane Harvey. Currently, 26 states have passed anti-BDS legislation, with similar such bills still pending in 13 different statehouses.

It is as important now as it has ever been to defend the basic constitutional right to free political expression. We will continue to champion your voice and keep you informed as any new versions of this Act or challenges to your free speech surface.